Last month we reviewed how to respond to visits from government investigators. But how do you respond to a phone call or a letter?
A phone call is certainly easier to handle than an in-person encounter. But there are still potential pitfalls. First, never assume that the person on the phone is who he or she claims to be. While impostors are rare, twice in my career I have encountered someone who purported to be a government agent, but was not. While one of those individuals appeared in person (with what proved to be a fake business card, no less), the other used the phone.
Generally speaking, government investigators make their initial contact in person. That fact should heighten your suspicion of someone claiming to be a government agent on the phone; agents do call, but it is rare.
Don’t Hang Up
If someone claiming to be a government agent calls, it is helpful to think about how you would handle a telephone solicitation in the middle of dinner. Of course, some minor modifications will need to be made (for example, I wouldn’t just hang up). Instead of immediately getting off the phone, you would want to ask for the caller’s name, the name of his or her agency and the reason for the call. Make sure you get the spelling of the caller’s name, and that you understand what the government agency does. You also can ask for a return phone number. Then tell the person that you are in the middle of something and that you will call them back. If they tell you it’s important, you can offer to call back quickly, but don’t engage in any substantive conversation in which you are providing information to the caller. If the caller wants to share anything with you, listen and take careful notes, but avoid answering any questions.
Involve Legal Counsel
Next, I recommend contacting your legal counsel. Either your counsel or you (preferably the former) need to make a quick phone call to the relevant agency to verify the agent’s identity (it is possible that your legal representative already will know the agent, in which case this step would be unnecessary). Note that you should not call the number that the caller left. Instead, look up the agency’s number and call the general number to verify that the agent does, in fact, work for the agency. In the unlikely event that the person is an imposter, he or she probably will be smart enough to have someone else answer the phone with a cover. Caller ID makes it particularly easy to screen an incoming call in time to answer “FBI” or “OIG” when connected (in fact, while perhaps a bit paranoid, this may be a good practice whenever you are making reference phone calls or other verifications of identity.)
Once your counsel determines that the call is legitimate, you can discuss your options. If you are reluctant to involve your counsel because you don’t want to appear guilty, keep in mind a few key points.
First, agents expect to deal with counsel, even if they might hope not to at first; they know that the more natural and wise course of action for you is to consult with counsel. Moreover, using counsel allows for plausible deniability when questions are being asked. Your lawyer isn’t expected to know the answers to most questions. This will allow you to learn more about the investigation without exposing yourself to questioning.
How to Respond
You are more likely to receive a call from a contractor than an agent. While these calls typically are not as alarming as contact from a government agency, they still should not be taken lightly. While a MAC obviously has the power to recoup overpayments, they also can (and periodically do) refer cases over to the OIG. In short, a call from a MAC merits treatment comparable to a call from an agent.
In many ways, responding to a letter or subpoena is the easiest task of all, because you have time to gather your thoughts and relevant information. There are, however, a few tips to keep in mind when responding to any record request. First, make sure you have a clear process for receiving important mail. Keep the envelopes. There have been many times when a letter from a MAC is postmarked months after it is dated. The postmark often is your best evidence of a delay. In addition, make sure that all communications from the contractors or the government are stamped with a received date, as appeal deadlines generally run from the date of receipt. In most cases, there is a presumption that letters will be received no more than five days after they are mailed. If you can show that the actual receipt occurred later than that, you typically will be granted additional time.
Also, make certain that you keep copies of exactly what you send in return. You might think that since you already have the medical records, there is no need to keep extra copies. However, copying errors are common, so it is always possible that some portion of a requested record was not sent. It is almost routine for an organization reviewing a record to claim that some portion of the record was not sent. Since you want to be able to ascertain exactly what the reviewer has in his or her hands, and in the exact format in which he or she is reviewing it, you want a perfect duplicate of what you sent. This can be particularly important in appeals being argued before an administrative law judge (ALJ), when you often discuss portions of the medical record with participants scattered across the country. You need to know that all participants are looking at the same information.
For that reason, it also is extremely helpful to number all pages of records. Numbering the pages has an additional benefit: if (or perhaps I should say when) a reviewer claims that he or she didn’t receive some piece of information, your ability to demonstrate that it was sent as “page 43” is much more effective than an assertion that “we sent it.” If producing electronic medical records, make sure you have a list of the exact files that are included.
Receiving contact from an investigator is never good news, but with some care, you can increase the likelihood that it won’t be bad news, either.
About the Author
David Glaser is a shareholder in Fredrikson & Byron's Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.
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